DATE: 20030512

DOCKET: C37047

COURT OF APPEAL FOR ONTARIO

RE: INTER-FUND MORTGAGE CORP., & TIM THOMAS, IN TRUST (Applicants/Appellants) – and – THE CORPORATION OF THE CITY OF WELLAND & 1372695 ONTARIO INC. (Respondents/Respondents in Appeal)

BEFORE: FELDMAN, SIMMONS and GILLESE JJ.A.

COUNSEL: John A. Crossingham for the appellants

Christopher J. Williams for the respondent

HEARD: May 8, 2003

RELEASED ORALLY: May 8, 2003

On appeal from the judgment of Justice Joseph R. Henderson, of the Superior Court of Justice, dated August 24, 2001.

E N D O R S E M E N T

[1] We are not persuaded that Henderson J. made any error in law or principle in this matter. He quite properly found, on the basis of authority of this court in Deverell v. Anson, Hindon and Minden (Townships) (1998), 1998 1437 (ON CA), 110 O.A.C. 372 (C.A.), that the standard of review of the Treasurer’s exercise of discretion is one of reasonableness.

[2] Henderson J. made no error in finding that the Deputy Treasurer had exercised his discretion in a reasonable manner. The evidentiary basis is clear that the Deputy Treasurer fully considered all relevant factors in the exercise of his discretion and we reject the contention that he in any way fettered that discretion.

[1] The appellants seek to make the argument before us that they were prejudiced by the respondent’s failure to advise them of a “secret practice” of accepting payment of the cancellation price after the expiry of the redemption period but before the commencement of advertising for sale. We begin by noting that this issue is raised for the first time before us even though it was clearly open to the appellants to raise it before Henderson J. Having failed to raise it below, it is not open to the appellants to now raise it. That said, we would note that, in any event, the practice was not secret -- it was in the literature and jurisprudence. Nor was it a practice inasmuch as the Treasurer was simply following the directions of this court in Elliott v. City of Toronto (1999), 1999 1073 (ON CA), 43 O.R. (3d) 392 (C.A.). And, finally, there is no evidence of any prejudice to the appellants as a result of the failure to be apprised of the “practice”.

[2] For these reasons, the appeal is dismissed with costs to the respondent fixed in the amount of $15,000.

“K.N. Feldman J.A.”

“J.M. Simmons J.A.”

“E.E. Gillese J.A.”